Trials@uspto.gov
`571-272-7822
`
`
`
` Paper No. 48
`
`Date Entered: July 22, 2019
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`DISPERSIVE NETWORKS, INC.,
`Petitioner,
`
`v.
`
`NICIRA, INC.,
`Patent Owner.
`____________
`
`Case PGR2018-00063
`Patent 9,722,815 B2
`____________
`
`
`
`Before DEBRA K. STEPHENS, GARTH D. BAER, and
`KAMRAN JIVANI, Administrative Patent Judges.
`
`STEPHENS, Administrative Patent Judge.
`
`
`
`
`
`ORDER
`Trial Hearing
`37 C.F.R. § 42.70
`
`
`
`
`
`
`
`
`
`
`571-272-7822
`
`
`
` Paper No. 48
`
`Date Entered: July 22, 2019
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`DISPERSIVE NETWORKS, INC.,
`Petitioner,
`
`v.
`
`NICIRA, INC.,
`Patent Owner.
`____________
`
`Case PGR2018-00063
`Patent 9,722,815 B2
`____________
`
`
`
`Before DEBRA K. STEPHENS, GARTH D. BAER, and
`KAMRAN JIVANI, Administrative Patent Judges.
`
`STEPHENS, Administrative Patent Judge.
`
`
`
`
`
`ORDER
`Trial Hearing
`37 C.F.R. § 42.70
`
`
`
`
`
`
`
`
`
`
`
`Case PGR2018-00063
`Patent 9,722,815 B2
`
`
`The Scheduling Order sets August 13, 2019 as the date for oral
`
`argument, if requested by the parties and granted by the Board (Paper 26, 6).
`
`Patent Owner and Petitioner have requested oral argument pursuant to
`
`37 C.F.R. § 42.70(a) (Paper 44; Paper 46). The parties’ requests for oral
`
`argument are granted.
`
`Each party will have thirty (30) minutes to present arguments. At the
`
`oral hearing, Petitioner will proceed first to present the issues for which it
`
`bears the ultimate burden. Thereafter, Patent Owner will argue its
`
`opposition to Petitioner’s case, and present the issues for which it bears the
`
`ultimate burden. To the extent Petitioner reserves rebuttal time, Petitioner
`
`then may make use of its rebuttal time responding to Patent Owner. To the
`
`extent Patent Owner reserves rebuttal time, Patent Owner then may make
`
`use of its rebuttal time responding to Petitioner.
`
`Oral argument will commence at 10:00 AM Eastern Time on
`
`August 13, 2019, on the ninth floor of Madison Building East, 600
`
`Dulany Street, Alexandria, Virginia. All attendees will need a valid form
`
`of government-issued identification in order to enter the building and may be
`
`subject to security screening. The hearing will be open to the public for in-
`
`person attendance, and in-person attendance will be accommodated on a
`
`first-come, first-served basis. If the parties have any concern about
`
`disclosing confidential information, they are to contact the Board at least
`
`five (5) business days before the hearing to discuss the matter. The Board
`
`will provide a court reporter for the hearing and the reporter’s transcript will
`
`constitute the official record of the oral argument.
`
`At least seven (7) business days prior to oral argument, each party
`
`shall serve on the other party any demonstrative exhibit(s) it intends to use
`
`
`
`2
`
`
`
`Case PGR2018-00063
`Patent 9,722,815 B2
`
`during oral argument (see 37 C.F.R. § 42.70(b)). The parties also shall
`
`provide the demonstrative exhibits to the Board at least five (5) business
`
`days prior to oral argument by e-mailing them to Trials@uspto.gov. The
`
`parties shall not file any demonstrative exhibits in this case without our
`
`prior authorization. Demonstrative exhibits are not evidence, but
`
`merely a visual aid at the oral arguments, and should be clearly marked
`
`as such. For example, each slide of a demonstrative exhibit may be marked
`
`with the words “DEMONSTRATIVE EXHIBIT – NOT EVIDENCE” in the
`
`footer. Demonstrative exhibits may not introduce new evidence or raise new
`
`arguments, but instead, should cite to evidence in the record (see Dell Inc. v.
`
`Acceleron, LLC, 884 F.3d 1364, 1369 (Fed. Cir. 2018) (noting that the
`
`“Board was obligated to dismiss [the petitioner’s] untimely argument . . .
`
`raised for the first time during oral argument”)). The parties are directed to
`
`St. Jude Medical, Cardiology Division, Inc. v. The Board of Regents of the
`
`University of Michigan, Case IPR2013-00041 (PTAB Jan. 27, 2014) (Paper
`
`65) and CBS Interactive Inc. v. Helferich Patent Licensing, LLC, Case
`
`IPR2013-00033 (PTAB Oct. 23, 2013) (Paper 118), for guidance regarding
`
`the appropriate content of demonstrative exhibits.
`
`The parties should attempt to resolve any objections to demonstratives
`
`prior to involving the Board. The parties must request a conference call with
`
`the Board at least four (4) business days before the hearing to present any
`
`unresolved objection regarding the propriety of any demonstrative exhibit.
`
`Any unresolved objection to demonstrative exhibits that is not timely
`
`presented will be considered waived. The Board asks the parties to confine
`
`demonstrative exhibit objections to those identifying egregious violations
`
`that are prejudicial to the administration of justice. To aid in the preparation
`
`
`
`3
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`Case PGR2018-00063
`Patent 9,722,815 B2
`
`of an accurate transcript, each party shall provide paper copies of its
`
`demonstratives to the court reporter on the day of the oral arguments. Such
`
`paper copies shall not become part of the record of this proceeding.
`
`The parties are reminded that each presenter must identify clearly and
`
`specifically each demonstrative exhibit (e.g., by slide or screen number),
`
`paper, or exhibit referenced during the oral arguments to ensure the clarity
`
`and accuracy of the reporter’s transcript. The parties also should note that at
`
`least one member of the panel will be attending the oral arguments
`
`electronically from a remote location and that if any demonstrative is not
`
`made fully available or visible to the judge presiding over the oral
`
`arguments, that demonstrative will not be considered. Because of
`
`limitations of the audio transmission systems in our hearing rooms, the
`
`presenter may speak only when standing at the hearing room lectern. If the
`
`parties have questions as to whether demonstrative exhibits would be
`
`sufficiently visible and available to all of the judges, the parties are invited
`
`to contact the Board at (571) 272-9797.
`
`The Board expects lead counsel for each party to be present in person
`
`at oral argument. If a party anticipates that its lead counsel will not be
`
`attending the oral arguments, the parties should request a joint telephone
`
`conference with the Board no later than seven (7) business days prior to the
`
`oral arguments to discuss the matter. Any counsel of record, however, may
`
`present the party’s arguments.
`
`Per the August 2018 update to the Office Patent Trial Practice Guide,
`
`either party may request a pre-hearing conference (83 Fed. Reg. 39,989
`
`(Aug. 13, 2018) (found at the following link to the USPTO website:
`
`https://go.usa.gov/xU7GP)). Requests for a pre-hearing conference must be
`
`
`
`4
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`
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`Case PGR2018-00063
`Patent 9,722,815 B2
`
`made by July 29, 2019. To request such a conference, an email should be
`
`sent to Trials@uspto.gov including several dates and times of availability for
`
`one or both parties, as appropriate, that are generally no later than three
`
`business days prior to the oral hearing. Please refer to the Guide for more
`
`information on the prehearing conference.
`
`A party may request remote video attendance for one or more of its
`
`other attendees to view the hearing from any USPTO location. The
`
`available locations include the Texas Regional Office in Dallas, Texas; the
`
`Rocky Mountain Regional Office in Denver, Colorado; the Elijah J. McCoy
`
`Midwest Regional Office in Detroit, Michigan; and the Silicon Valley Office
`
`in San Jose, CA. To request remote video viewing, a party must send an
`
`email message to Trials@uspto.gov ten business days prior to the hearing,
`
`indicating the requested location and the number planning to view the
`
`hearing from the remote location. The Board will notify the parties if the
`
`request for video viewing is granted. Note that it may not be possible to
`
`grant the request due to the availability of resources.
`
`Requests for audio-visual equipment are to be made at least five (5)
`
`business days in advance of the date of the hearing by sending the request to
`
`Trials@uspto.gov. If the request is not received timely, the equipment may
`
`not be available on the day of the hearing. A party may also indicate any
`
`special requests related to appearing at an in-person oral hearing, such as a
`
`request to accommodate physical needs that limit mobility or visual or
`
`hearing impairments, and indicate how the PTAB may accommodate the
`
`special request.
`
`
`
`
`
`
`
`5
`
`
`
`Case PGR2018-00063
`Patent 9,722,815 B2
`
`
`It is hereby:
`
`ORDER
`
`ORDERED that oral argument for this proceeding shall take place
`
`beginning at 10:00 AM Eastern Time on August 13, 2019, on the ninth floor
`
`of Madison Building East, 600 Dulany Street, Alexandria, Virginia.
`
`
`
`
`
`PETITIONER:
`
`Chad Tillman
`chad@ti-law.com
`
`Jeremy Doerre
`jdoerre@ti-law.com
`
`PATENT OWNER:
`
`Scott Cummings
`Scott.cummings@dentons.com
`
`Kevin Greenleaf
`Kevin.greenleaf@dentons.com
`
`
`
`
`6
`
`
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